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December 18, 2007

Notable media coverage of victims' rights

In the wake of recent Federal Sentencing Reporter issues focused on victims' rights at sentencing (details here and here), I was intrigued to see this new piece from US News and World Report headlined "Giving Crime Victims More of Their Say: A federal law has created tensions in the legal system." Here are snippets from the piece:

Historically, the adversarial legal system has carved out roles in criminal cases only for the prosecutor and the accused. Victims have been relegated to the sidelines unless they were testifying. Although the interests of prosecutors usually align with those of victims, they are not always the same: for instance, when victims want tougher sentences than prosecutors do. Victims' rights advocates hope the changes are just the start and are pushing to put victims on an equal footing with defendants and prosecutors. "What our goal should be is to put the victim back into the position as if no crime had been committed," says Paul Cassell, a former federal judge who resigned this year to advocate for victims.

Crime victims began winning rights at the state level decades ago, but the 2004 legislation brought the protections to the federal level for the first time. Victims now must be notified about court developments. They must be allowed to speak during bail and sentencing hearings. And most important, the law gives them the ability to appeal rulings when they think their rights are being violated.... The Justice Department is even funding three legal clinics, in Maryland, Arizona, and South Carolina, to help victims assert these rights in court.

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If victims are going to be treated like a party, then the rules of evidence and procedure (for example, statement of party opponent = nonhearsay) should apply to victims. Both the state and the victim(s) should be co-plaintiffs.

Otherwise, keep the victims and their families at least 50 miles from the courthouse except when one of them has to testify. Victim impact is irrelevant, the fact that a crime occurred presumes an impact on a victim (assuming it's not a victimless crime). Having the victims and/or their families get up and whine, bitch, cry, and demand the toughest sentence does so service to the justice system. The system presumes victims want the highest sentence possible, they're the definition of biased, and their opinions as to the proper sentence are the most irrelevant of any other human beings on the planet.

Clearly, I'm of the "fuck victim's rights" camp. Victims have the "right" to call 9-11 and have cops sent out to deal with the alleged issue. That's it.

The irony is that the “victims’ rights” movement has made me actually dislike victims. Before I saw them as an unfortunate consequence of political activity. Now I see them as nothing more than political operatives that are being willingly manipulated by much more sophisticated people. Obviously the truth lies somewhere in the middle, but because of this post, I am going to spend all day thinking of victims as political hacks.

Before it became standard practice for prosecutors to seize on victims as a tool for making emotional appeals to overcome weak/flawed evidence against the accused, defense attorneys at times provided basic information about the steps in the case to victims families. Now prosecutors (and the media) demonize defense attorneys, in part to prevent what could be a very restorative dialogue because it doesn't serve the prosecution's desires.

The quoted portion of the article also fails to mention how prosecutors have disrespected the "vicitm's" views by seeking, for example, the death penalty for murders of one family member against another.

Posted by: DYN | Dec 18, 2007 10:06:31 AM

S.cotus: I agree re: the "Victims' Rights Movement" having prejudiced me against victims.

And I shouldn't have to put in every motion in limine that the prosecutor not say or imply that she represents the victim. Particularly in rape trials.

federalist: I'm a defense attorney and I've never handed out a home address of a witness.

Hand it out to whom?

Anonymous poster @ 1:58:38PM: No, I have not, and I'd like to think it would not change my position. But if it did change my position, that's just the more reason why my opinion should be kept out of the debate, or at least greatly devalued. How can such a biased person, directly harmed by something, contribute to a debate about justice? If my child were killed, I should not be permitted to speak at the trial of the defendant, precisely because I'd want to. I know the counterargument to what I've just stated, and it makes for an interesting debate. But suffice it to say, I think people who sit at home and read books and current affairs periodicals all day long, in a vaccuum, without interacting with people (those on the sidelines, rather than those directly involved with society) are the ones who should be making public policy decisions.

Victims of drunk drivers should not be setting the penalties for drunk driving any more than alcoholics with several DWI's on their record. See what I mean? Both should be excluded from the debate. And people with no vested or emotional interest in the issue are the ones who should be involved in determining the policy by which the rest of us must abide.

I did have my bike stolen when I was a kid, and I got over it. I didn't join the victim's rights movement, and even became a lawyer who's defended people of, among other things, theft. I have not had a bike theft case, but if I did get one, I would have no problem taking it (assuming the bike theif could afford my fees, which is probably unlikely given that he felt the need to steal a friggin' bike).

Federalist, Since you have admitted that you are not a lawyer, I don’t know what your basis for the comment “Bruce probably thinks it's cool that defense attorneys routinely hand out home addresses of witnesses” is. If you were a prosecutor, you would have been able provide specific examples of this happening. If you were a defense attorney, you could have said “I do it all time time.”

The fact is, it doesn’t happen. Perhaps one or two times a defendant found out the address of a witness, but he might have found it out from another sources.

Anyway, there is no basis for Federalist’s claim. I am not sure if he is lying, or just making stuff up for fun.

In a LWOP case the sentence is predetermined and the victim impact statement could be a written statement only. A verbal presentation of the victim impact statement under those circumstances converts the courtroom into a theater with reporters as drama critics. I don't understand why the judges are willing to provide such a public spectacle.

We have a local victims week program and one of the presentations involves someone reading their victims statement. In all the cases the victims statement made no difference in the sentence because LWOP is LWOP. It appeared to me the purpose of the exercise was to demonstrate the County Attorney cared about victims. OK you can show that once so why do it every year?

Federalist, One of the reasons that your argument is deficient is that you did not say anything besides “Read about Mr. Fields.”

Usually I do not simply go to URLs unless specifies are given as to why I should go there. But, I made an exception this once.

As usual, I was disappointed. There is no indication that any defense attorneys provided defendants with the addresses of any witnesses. Therefore, you have offered no proof that defense attorneys do this “once” – yet alone “routinely.”

Now I am convinced that you made these claims without basis, and you continue to make them just to decide people. Moreover, I think that you are engaged in this deception --- yes, lying – on purpose. This is why we don’t like non-lawyers: THEY LIE.

Now, setting aside your lies, a more likely scenario is that bad people (i.e. non-lawyers) that are defendants in criminal proceedings are driving to commit crimes and endeavor to research, on their own, the whereabouts of witnesses. This is sad, but it has nothing to do with defense attorneys.

"But if it did change my position, that's just the more reason why my opinion should be kept out of the debate, or at least greatly devalued. How can such a biased person, directly harmed by something, contribute to a debate about justice?"

Why should it be devalued? And what's all this nonsense about bias? Everyone is biased for crying out loud: the prosecutors, the defense attorneys, the jurors, the judge, etc. Seems to me the victim's opinion is central to the idea of a justice system that delivers justice to those hurt by someone who doesn't obey the law.

Posted by: | Dec 18, 2007 8:39:51 PM

Apparently, S.cotus, you missed this:

"Field's case illustrates glaring weaknesses in the witness protection program. Prosecutors filed an order for protection requesting Javad Fields' personal information be kept secret, but it wasn't signed by a judge until one year later, after defense lawyers had already given the suspects Fields' personal information, along with crucial trial documents."

You can also go to apublicdefender.com, and check out what a PD has to say about it--basically, that it's not his problem.

Posted by: federalist | Dec 18, 2007 9:08:57 PM

And what about that indicates that there is a pattern of doing this?

There is also no indication that his address was given. And, of course, there was no indication that anyone violated a court order.

(Also, as a practical matter, I seriously doubt that non-"secret" information about a victim COULD be kept secret.)

"Seems to me the victim's opinion is central to the idea of a justice system that delivers justice to those hurt by someone who doesn't obey the law."

I could not disagree more. The facts of the case and the attributes of the defendant (the only human party to a criminal case) are from where justice arises. The victim's opinion about his/her ordeal is irrelevant. Not only is it irrelevant, it's overly prejudicial to the rights of the defendant. It also gives an advantage to victims who are better communicators, better actors, and more physically attractive (people sympathise with attractive people moreso than unattractive ones, there are a million studies proving that fact).

The acts of the defendant (once determined beyond a reasonable doubt) coupled with the characteristics of the defendant (criminal history, mental status, etcetera) are what sentences should be based on. The "opinion" of the victim is not, nor should it be, a factor. It's introduction pre-sentencing is antithetical to justice, not in furtherance of it.

Furthermore, unless the jury hears otherwise, the jury will presume the victim wanted to and did press charges, so the jury knows the victim is pissed off and will presume the victim want the defendant to get the maximum punishment permitted by law. The jury doesn't need to hear it from the victim's mouth. To let the victim get up there and rant about it is cumulative, unnecessary, and horrendously prejudicial to the rights of the defendant. In the rare case when the victim has filed an affidavit of non-prosecution, but the state goes forward with the charges anyway, the jury will hear about it. That rebuts the presumption that the victim is pissed of at the defendant and wants severe punishment.